Background
This area of law is very technical in nature and some every-day language has specific legal meanings, which are often difficult concepts for managers and staff to grasp.
Shared parental leave come into force on 5 April 2015. This gives a man a right to take a year off work to care for the baby from birth. The current legal framework gives rights to married heterosexual couple of parents, gay couples and civil partners, adopting parents and parents who commission babies through surrogacy. There are little or no rights applicable to an employee undergoing fertility treatment or an employee travelling abroad to adopt a baby, or an employee who has adopted a school-age child.
Extension of rights applicable to grandparents
Shared parental leave and pay is to be extended to working grandparents from June 2018. This is in recognition of the crucial role grandparents play in providing childcare.
Evidence suggests that nearly 2 million grandparents have given up work, reduced their hours or taken time off to help cut down childcare costs. Grandparents may be contributing as much as £8bn each year to bridge the gap as work pressures increase. Evidence shows more than half of mothers rely on grandparents for childcare when they first go back to work after maternity leave, and over 60 per cent of working grandparents with grandchildren aged under 16 provide some childcare. In total, some seven million grandparents are involved in childcare. The new system will also provide flexibility in working arrangements for grandparents without fear of losing their job.
Statutory rights of working parents
Pregnant employees – right to take paid time off to attend antenatal appointments, s. 55 ERA 1996. This right is available to women who do and to women who do not proceed with their pregnancies to full term. Women who suffer from maternity related health problems and miscarriage, may also have maternity-related rights to time off work, and sick pay, depending on the timing;
An expectant father – is now able to take unpaid time off to accompany his wife to these appointments. He may go to up to two antenatal appointments of up to six and half hours each;
Maternity leave – statutory maternity leave is a total of 39 weeks’ leave and should be taken in one block. Essential to give notice of intention to take leave no later than 25 or 26 weeks. A compulsory period of 2 weeks maternity leave and 4 weeks for factory workers. The payment is a statutory rate, currently £139.58;
Breastfeeding and return to work – There is no legal protection but are able to exercise their rights under the health and safety legislation and other statutory discrimination laws;
Paternity leave – a father can exercise the option to take paid one or two weeks of leave in block but not take odd days off. The payment is a statutory rate, currently £139.58.
Parental leave
This is unpaid and is applicable to either gender who has been continuously employed for not less than a year, for the purposes of caring for a child. The leave is limited to 18 weeks for each child and must be taken in blocks of a week.
Holiday leave
The principle behind taking annual leave is that it is supposed to be meant for the purposes of resting. There is no current case law to suggest that an employer can compel an employee to use their holidays for the purposes of childcare – but it happens in reality.
Time off for dependants
Working parents (gender neutral) are able to take reasonable time off to deal with family emergencies involving dependants who:
- Are ill
- Are injured
- Gives birth
- Dies
- Unexpected disruption to childcare arrangements
Right to Request flexible working
In order to make a statutory request for flexible working, the following eligibility criteria apply:
- A statutory request can only be made by an employee and not applicable to agency workers, self-employed contractors, consultants.
- The employee must have 26 weeks’ continuous employment at the date the request is made.
- Only one request may be made under the statutory scheme in any 12-month period. While the employer will not be obliged to follow the statutory procedure in response to an informal request, a refusal without appropriate consideration could give rise to claims outside the statutory flexible working scheme, for example, a claim for discrimination
Who is eligible?
- An employee (as opposed to agency workers, zero hours workers and self-employed workers – who have limited rights only) with at least 26 weeks of employment before around 25 weeks of pregnancy;
- For couples only and single parents are unable to participate;
- Men whose wives stay at home will be unable to take shared parental leave at all;
- Only self-employed mothers may share their parental leave with employed fathers. However, self-employed fathers are unable to share their parental leave or pay with employed mothers;
- A mother, following the compulsory maternity leave, may share the leave with her husband.
How does shared parental leave work?
- The notice requirements for shared parental leave are complicated. The leave may be split into up to three blocks.
- An employer cannot veto a request to take a continuous block of shared parental leave.
- Each parent taking shared parental leave may have up to 20 shared parental leave keeping in touch days (KIT days). This is negotiable and so is the rate of pay.
An employer is entitled to ask to see the baby’s birth certificate, and to know the name and address of the other parent’s employer.
Practical considerations
- To have policies and procedures in place which all managers and team members can refer to;
- Training for the HR community and managers on the implementation of the policies;
- Avoid the risk of claims by getting early advice.
Rashmi Chopra – Employment Solicitor Hanne & Co
